EXHIBIT 77Q1 to Xxxxxxxxx Xxxxxx Income
Opportunity Fund Inc. NSAR 10/31/09
File Number: 81121334
CIK Number: 0000000000
SubItem 77Q1(e)
Copies of Current Investment Advisory Contracts
MANAGEMENT AGREEMENT
XXXXXXXXX XXXXXX INCOME OPPORTUNITY FUND INC.
This Agreement is made as of May 13, 2009,
between Xxxxxxxxx Xxxxxx Income Opportunity
Fund Inc., a Maryland corporation (Fund), and
Xxxxxxxxx Xxxxxx Management LLC, a Delaware limited
liability company (Manager).
WITNESSETH:
WHEREAS, Fund is registered under the Investment
Company Act of 1940, as amended (1940
Act), as a closedend, nondiversified management
investment company; and
WHEREAS, Fund desires to retain the Manager
as investment adviser to furnish the investment
advisory and portfolio management services described
herein and the Manager is willing to furnish such
services;
NOW, THEREFORE, in consideration of the premises
and mutual covenants herein contained, it
is agreed between the parties hereto as follows:
1. Services of the Manager.
1.1 Investment Management Services. The
Manager shall act as the investment adviser to
the Fund and, as such, shall (i) obtain and evaluate
such information relating to the economy, industries,
businesses, securities markets and securities as it
may deem necessary or useful in discharging its
responsibilities hereunder, (ii) formulate a continuing
program for the investment of the assets of the Fund
in a manner consistent with its investment objectives,
policies and restrictions, and (iii) determine from
time to time securities to be purchased, sold, retained
or lent by the Fund, and implement those decisions,
including the selection of entities with or through which
such purchases, sales or loans are to be effected;
provided, that the Manager will place orders pursuant to
its investment determinations either directly with
the issuer or with a broker or dealer, and if with a
broker or dealer, (a) will attempt to obtain the best net
price and most favorable execution of its orders,
and (b) may nevertheless in its discretion purchase and
sell portfolio securities from and to brokers and dealers
who provide the Manager with research, analysis,
advice and similar services and pay such brokers and
dealers in return a higher commission or spread than
may be charged by other brokers or dealers.
The Fund hereby authorizes any entity or person
associated with the Manager which is a member
of a national securities exchange to effect or execute
any transaction on the exchange for the account of
the Fund which is permitted by Section 11(a) of the
Securities Exchange Act of 1934 and Rule 11a22(T)
thereunder, and the Fund hereby consents to the
retention of compensation for such transactions in
accordance with Rule 11a22(T)(a)(2)(iv).
The Manager shall carry out its duties with
respect to the Funds investments in accordance with
applicable law and the investment objectives, policies
and restrictions of the Fund adopted by the
directors of Fund (Directors), and subject to such
further limitations as the Fund may from time to time
impose by written notice to the Manager.
1.2 The Manager can use any of the
officers and employees of Xxxxxxxxx Xxxxxx
LLC to provide any of the noninvestment advisory
services described herein, and can
subcontract to third parties, provided the Manager
remains as fully responsible to the Fund under
this contract as if the Manager had provided services directly.
2. Expenses of the Fund.
2.1 Expenses to be Paid by the Manager.
The Manager shall pay all salaries, expenses and
fees of the officers, directors and employees of the
Fund who are officers, directors or employees of the
Manager.
In the event that the Manager pays or assumes
any expenses of the Fund not required to be paid
or assumed by the Manager under this Agreement, the
Manager shall not be obligated hereby to pay or
assume the same or any similar expense in the future;
provided, that nothing herein contained shall be
deemed to relieve the Manager of any obligation to
the Fund under any separate agreement or
arrangement between the parties.
2.2 Expenses to be Paid by the Fund. The
Fund shall bear the expenses of its operation,
except those specifically allocated to the Manager under
this Agreement or under any separate agreement
between the Fund and the Manager. Subject to any separate
agreement or arrangement between the Fund
and the Manager, the expenses hereby allocated to the Fund,
and not to the Manager, include, but are not
limited to:
2.2.1 Custody. All charges of depositories,
custodians, and other agents for the transfer,
receipt, safekeeping, and servicing of its cash,
securities, and other property.
2.2.2 Stockholder Servicing. All expenses
of maintaining and servicing Stockholder accounts,
including but not limited to the charges of any Stockholder
servicing agent, dividend disbursing agent or
other agent engaged by the Fund to service Stockholder accounts.
2.2.3 Stockholder Reports. All expenses of preparing,
setting in type, printing and distributing
reports and other communications to Stockholders of the Fund.
2.2.4 Pricing and Portfolio Valuation. All
expenses of computing the Funds net asset value per
share, including any equipment or services obtained for
the purpose of pricing shares or valuing the Funds
investment portfolio.
2.2.5 Communications. All charges for equipment
or services used for communications
between the Manager or the Fund and any custodian,
Stockholder servicing agent, portfolio accounting
services agent, dividend disbursing agent, dividend
reinvestment plan agent or other agent engaged by the
Fund.
2.2.6 Legal and Accounting Fees. All charges
for services and expenses of the Funds legal
counsel and independent auditors.
2.2.7 Directors Fees and Expenses. All
compensation of Directors other than those affiliated
with the Manager, all expenses incurred in connection
with such unaffiliated Directors services as
Directors, and all other expenses of meetings of
the Directors or committees thereof.
2.2.8 Stockholder Meetings. All expenses
incidental to holding meetings of Stockholders,
including the printing of notices and proxy materials,
and proxy solicitation therefor.
2.2.9 Bonding and Insurance. All expenses
of bond, liability, and other insurance coverage
required by law or regulation or deemed advisable by
the Directors, including, without limitation, such
bond, liability and other insurance expense that may
from time to time be allocated to the Fund in a
manner approved by the Directors.
2.2.10 Brokerage Commissions. All brokers
commissions and other charges incident to the
purchase, sale or lending of the Funds portfolio securities.
2.2.11 Taxes. All taxes or governmental fees
payable by or with respect to the Fund to federal,
state or other governmental agencies, domestic or
foreign, including stamp or other transfer taxes.
2.2.12 Trade Association Fees. All fees,
dues and other expenses incurred in connection with
the Funds membership in any trade association or
other investment organization.
2.2.13 Nonrecurring and Extraordinary
Expenses. Such nonrecurring and extraordinary
expenses as may arise, including the costs of actions,
suits, or proceedings to which the Fund is a party
and the expenses the Fund may incur as a result of
its legal obligation to provide indemnification to Funds
officers, Directors and agents.
2.2.14 Organizational Expenses and Offering
Expenses for Common Stock. Any and all
organizational expenses of the Fund and any and all
offering expenses for shares of the Funds common
stock paid by the Manager shall be reimbursed by
the Fund if and at such time or times agreed by the
Fund and the Manager.
2.2.15 Expenses of Listing on a National
Securities Exchange. Any and all expenses of
listing and maintaining the listing of shares of
the Funds common stock on any national
securities exchange.
2.2.16 Offering Expenses for any Preferred
Stock. Any and all offering expenses (including
rating agency fees) for any preferred stock of the Fund
paid by the Manager shall be reimbursed by the
Fund if and at such time or times agreed by the Fund and the Manager.
2.2.17 Dividend Reinvestment Plan. Any and all
expenses incident to any dividend reinvestment
plan.
2.2.18 Interest. Such interest as may accrue on
borrowings of the Fund.
3. Advisory Fee.
3.1 Fee. As compensation for all services
rendered, facilities provided and expenses paid or
assumed by the Manager under this Agreement, the Fund
shall pay the Manager an annual fee equal to
0.60% of the Funds average daily total assets minus
liabilities other than the aggregate indebtedness
entered into for purposes of leverage (Managed Assets).
3.2 Computation and Payment of Fee. The
advisory fee shall accrue on each calendar day,
and shall be payable monthly on the first business
day of the next succeeding calendar month. The daily
fee accruals shall be computed by multiplying the
fraction of one divided by the number of days in the
calendar year by the annual advisory fee rate, and
multiplying this product by the Managed Assets of the
Fund, determined in the manner established by the
Directors, as of the close of business on the last
preceding business day on which the Funds net asset
value was determined.
4. Ownership of Records.
All records required to be maintained and preserved
by the Fund pursuant to the provisions or
rules or regulations of the Securities and Exchange
Commission under Section 31 (a) of the 1940 Act and
maintained and preserved by the Manager on behalf of
the Fund are the property of the Fund and shall be
surrendered by the Manager promptly on request by the
Fund; provided, that the Manager may at its own
expense make and retain copies of any such records.
5. Reports to Manager.
The Fund shall furnish or otherwise make available
to the Manager such copies of the Funds
financial statements, proxy statements, reports, and
other information relating to its business and affairs as
the Manager may, at any time or from time to time,
reasonably require in order to discharge its
obligations under this Agreement.
6. Reports to the Fund.
The Manager shall prepare and furnish to the
Fund such reports, statistical data and other
information in such form and at such intervals as
the Fund may reasonably request.
7. Retention of SubAdviser.
Subject to the Fund obtaining the initial and
periodic approvals required under Section 15 of the
1940 Act, the Manager may retain a subadviser, at the
Managers own cost and expense, for the purpose of
making investment recommendations and research
information available to the Manager. Retention of a
subadviser shall in no way reduce the responsibilities
or obligations of the Manager under this Agreement
and the Manager shall be responsible to Fund for all
acts or omissions of the subadviser in connection
with the performance of the Managers duties hereunder.
8. Services to Other Clients.
Nothing herein contained shall limit the freedom
of the Manager or any affiliated person of the
Manager to render investment management and administrative
services to other investment companies, to
act as investment adviser or investment counselor to other
persons, firms or corporations, or to engage in
other business activities.
9. Limitation of Liability of Manager and its Personnel.
9.1 Neither the Manager nor any director,
officer or employee of the Manager performing
services for the Fund at the direction or request of
the Manager in connection with the Managers
discharge of its obligations hereunder shall be liable
for any error of judgment or mistake of law or for
any loss suffered by the Fund in connection with any
matter to which this Agreement relates; provided,
that nothing herein contained shall be construed (i)
to protect the Manager against any liability to the
Fund or its Stockholders to which the Manager would
otherwise be subject by reason of the Managers
willful misfeasance, bad faith, or gross negligence
in the performance of the Managers duties, or by
reason of the Managers reckless disregard of its
obligations and duties under this Agreement (disabling
conduct), or (ii) to protect any director, officer or
employee of the Manager who is or was a Director or
officer of the Fund against any liability to the Fund
or its Stockholders to which such person would
otherwise be subject by reason of willful misfeasance,
bad faith, gross negligence or reckless disregard of
the duties involved in the conduct of such persons
office with the Fund.
9.2 The Fund will indemnify the Manager against,
and hold it harmless from, any and all
expenses (including reasonable counsel fees and expenses)
incurred investigating or defending against
claims for losses or liabilities described in Section 9.1
not resulting from negligence, disregard of its
obligations and duties under this Agreement or disabling
conduct by the Manager. Indemnification shall
be made only following: (i) a final decision on the
merits by a court or other body before whom the
proceeding was brought that the Manager was not liable
by reason of negligence, disregard of its
obligations and duties under this Agreement or disabling
conduct or (ii) in the absence of such a decision,
a reasonable determination, based upon a review of the
facts, that the Manager was not liable by reason of
negligence, disregard of its obligations and duties under
this Agreement or disabling conduct by (a) the
vote of a majority of a quorum of directors of the Fund
who are neither interested persons of the Fund nor
parties to the proceeding (disinterested nonparty directors)
or (b) an independent legal counsel in a written
opinion. The Manager shall be entitled to advances from
the Fund for payment of the reasonable
expenses incurred by it in connection with the matter as
to which it is seeking indemnification hereunder
in the manner and to the fullest extent permissible
under the Maryland General Corporation Law. The
Manager shall provide to the Fund a written affirmation
of its good faith belief that the standard of
conduct necessary for indemnification by the Fund has
been met and a written undertaking to repay any
such advance if it should ultimately be determined
that the standard of conduct has not been met. In
addition, at least one of the following additional
conditions shall be met: (a) the Manager shall provide
security in form and amount acceptable to the Fund
for its undertaking; (b) the Fund is insured against
losses arising by reason of the advance; or (c) a majority
of a quorum of the full Board of Directors of the
Fund, the members of which majority are disinterested
nonparty directors, or independent legal counsel,
in a written opinion, shall have determined, based on
a review of facts readily available to the Fund at the
time the advance is proposed to be made, that there is
reason to believe that the Manager will ultimately
be found to be entitled to indemnification hereunder.
10. Effect of Agreement.
Nothing herein contained shall be deemed to
require the Fund to take any action contrary to the
Articles of Incorporation or ByLaws of the Fund, any
actions of the Directors binding upon the Fund, or
any applicable law, regulation or order to which the Fund
is subject or by which it is bound, or to relieve
or deprive the Directors of their responsibility for
and control of the conduct of the business and affairs of
the Fund.
11. Term of Agreement.
The term of this Agreement shall begin on the
date first above written and, unless sooner
terminated as hereinafter provided, this Agreement
shall remain in effect through October 31, 2010.
Thereafter, this Agreement shall continue in effect
from year to year, subject to the termination provisions
and all other terms and conditions hereof, provided,
such continuance is approved at least annually by
vote of the holders of a majority of the outstanding
voting securities of the Fund or by the Directors,
provided, that in either event such continuance is
also approved annually by the vote, cast in person at a
meeting called for the purpose of voting on such
approval, of a majority of the Directors who are not
parties to this Agreement or interested persons of
either party hereto; and provided further that the
Manager shall not have notified the Fund in writing
at least sixty (60) days prior to the first expiration
date hereof or at least sixty (60) days prior to any
expiration date hereof of any year thereafter that it does
not desire such continuation. The Manager shall
furnish to the Fund, promptly upon its request, such
information as may reasonably be necessary to evaluate
the terms of this Agreement or any extension,
renewal or amendment thereof.
12. Amendment or Assignment of Agreement.
Any amendment to this Agreement shall be in writing
signed by the parties hereto; provided, that
no such amendment shall be effective unless authorized
on behalf of the Fund (i) by resolution of the
Directors, including the vote or written consent of a
majority of the Directors who are not parties to this
Agreement or interested persons of either party hereto,
and (ii) by vote of a majority of the outstanding
voting securities of the Fund. This Agreement shall
terminate automatically and immediately in the event
of its assignment.
13. Termination of Agreement.
This Agreement may be terminated at any time by
either party hereto, without the payment of any
penalty, upon sixty (60) days prior written notice to
the other party; provided, that in the case of
termination by the Fund, such action shall have been
authorized (i) by resolution of the Directors,
including the vote or written consent of a majority
of Directors who are not parties to this Agreement or
interested persons of either party hereto, or (ii) by
vote of a majority of the outstanding voting securities
of the Fund.
14. Name of the Fund.
The Fund hereby agrees that if the Manager
shall at any time for any reason cease to serve as
investment adviser to the Fund, the Fund shall, if
and when requested by the Manager, eliminate from the
Funds name the name Xxxxxxxxx Xxxxxx and thereafter
refrain from using the name Xxxxxxxxx Xxxxxx
or the initials NB in connection with its business
or activities, and the foregoing agreement of the Fund
shall survive any termination of this Agreement and
any extension or renewal thereof.
15. Interpretation and Definition of Terms.
Any question of interpretation of any term or
provision of this Agreement having a counterpart in
or otherwise derived from a term or provision of the
1940 Act shall be resolved by reference to such term
or provision of the 1940 Act and to interpretation
thereof, if any, by the United States courts or, in the
absence of any controlling decision of any such court,
by rules, regulations or orders of the Securities and
Exchange Commission validly issued pursuant to the
1940 Act. Specifically, the terms vote of a majority
of the outstanding voting securities, interested person,
assignment and affiliated person, as used in this
Agreement shall have the meanings assigned to them by
Section 2(a) of the 1940 Act. In addition, when
the effect of a requirement of the 1940 Act reflected
in any provision of this Agreement is modified,
interpreted or relaxed by a rule, regulation or order
of the Securities and Exchange Commission, whether
of special or of general application, such provision
shall be deemed to incorporate the effect of such rule,
regulation or order.
16. Choice of Law
This Agreement is made and to be principally
performed in the State of New York and except
insofar as the 1940 Act or other federal laws and regulations
may be controlling, this Agreement shall be
governed by, and construed and enforced in accordance with,
the internal laws of the State of New York.
17. Captions.
The captions in this Agreement are included for
convenience of reference only and in no way
define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
18. Execution in Counterparts.
This Agreement may be executed simultaneously
in counterparts, each of which shall be deemed
an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be signed by their
respective officers thereunto duly authorized and their
respective seals to be hereunto affixed, as of the
day and year first above written.
XXXXXXXXX XXXXXX INCOME OPPORTUNITY FUND
INC.
/s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President and Secretary
XXXXXXXXX XXXXXX MANAGEMENT LLC
/s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: President
Date: May 13, 2009
SUBADVISORY AGREEMENT
XXXXXXXXX XXXXXX INCOME OPPORTUNITY FUND
XXXXXXXXX XXXXXX MANAGEMENT LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 101580006
May 13, 2009
Xxxxxxxxx Xxxxxx LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 101583698
Dear Sirs:
We have entered into a Management Agreement
with Xxxxxxxxx Xxxxxx Income Opportunity
Fund Inc. (Fund) pursuant to which we are to act as
investment adviser to the Fund. We hereby agree
with you as follows:
1. You agree for the duration of this Agreement
to furnish us with such investment
recommendations and research information, of the
same type as that which you from time
to time provide to your employees for use in
managing client accounts, all as we shall
reasonably request. In the absence of willful
misfeasance, bad faith or gross negligence in
the performance of your duties, or of the reckless
disregard of your duties and obligations
hereunder, you shall not be subject to liability
for any act or omission or any loss suffered
by the Fund or its security holders in connection
with the matters to which this
Agreement relates.
2. In consideration of your agreements set
forth in paragraph 1 above, we agree to pay you
on the basis of direct and indirect costs to you
of performing such agreements. Indirect
costs shall be allocated on a basis mutually
satisfactory to you and to us.
3. As used in this Agreement, the terms
assignment and vote of a majority of the
outstanding voting securities shall have the
meanings given to them by Section 2(a)(4)
and 2(a)(42), respectively, of the Investment
Company Act of 1940, as amended.
This Agreement shall terminate automatically
in the event of its assignment, or upon
termination of the Management Agreement between
the Fund and the undersigned.
This Agreement may be terminated at any
time, without the payment of any penalty, (a) by the
Directors of the Fund or by vote of a majority of
the outstanding voting securities of the Fund or by the
undersigned on not less than sixty days written notice
addressed to you at your principal place of
business; and (b) by you, without the payment of any
penalty, on not less than thirty nor more than sixty
days written notice addressed to the Fund and the
undersigned at the Funds principal place of business.
This Agreement shall remain in full force and
effect until October 31, 2010 (unless sooner
terminated as provided above) and from year to year
thereafter only so long as its continuance is approved
in the manner required by the Investment Company
Act of 1940, as from time to time amended.
If you are in agreement with the foregoing,
please sign the form of acceptance on the enclosed
counterpart hereof and return the same to us.
Very truly yours,
XXXXXXXXX XXXXXX MANAGEMENT LLC
/s/ Xxxxxx Xxxxx
By: Xxxxxx Xxxxx
Title: President
The foregoing is hereby accepted as
of the date first above written.
XXXXXXXXX XXXXXX LLC
/s/ Xxxxxx Xxxxx
By: Xxxxxx Xxxxx
Title: Managing Director
SUBADVISORY AGREEMENT
XXXXXXXXX XXXXXX INCOME OPPORTUNITY FUND
XXXXXXXXX XXXXXX MANAGEMENT LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 101580006
May 13, 2009
Xxxxxxxxx Xxxxxx Fixed Income LLC
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Dear Sirs:
We have entered into a Management Agreement
with Xxxxxxxxx Xxxxxx Income Opportunity
Fund Inc. (Fund) pursuant to which we are to act as
investment adviser to the Fund. We hereby agree
with you as follows:
1. You agree for the duration of this
Agreement to furnish us with such investment
recommendations and research information, of the
same type as that which you from time to
time provide to your employees for use in managing
client accounts, all as we shall
reasonably request. In the absence of willful
misfeasance, bad faith or gross negligence in the
performance of your duties, or of the reckless
disregard of your duties and obligations
hereunder, you shall not be subject to liability
for any act or omission or any loss suffered by
the Fund or its security holders in connection
with the matters to which this Agreement
relates.
2. In consideration of your agreements set forth
in paragraph 1 above, we agree to pay you on
the basis of direct and indirect costs to you of
performing such agreements. Indirect costs
shall be allocated on a basis mutually
satisfactory to you and to us.
3. As used in this Agreement, the terms assignment
and vote of a majority of the outstanding
voting securities shall have the meanings given to
them by Section 2(a)(4) and 2(a)(42),
respectively, of the Investment Company Act of 1940, as amended.
This Agreement shall terminate automatically
in the event of its assignment, or upon
termination of the Management Agreement between
the Fund and the undersigned.
This Agreement may be terminated at any time,
without the payment of any penalty, (a) by the
Directors of the Fund or by vote of a majority of the
outstanding voting securities of the Fund or by the
undersigned on not less than sixty days written notice
addressed to you at your principal place of
business; and (b) by you, without the payment of any
penalty, on not less than thirty nor more than sixty
days written notice addressed to the Fund and the
undersigned at the Funds principal place of business.
This Agreement shall remain in full force and
effect until October 31, 2010 (unless sooner
terminated as provided above) and from year to year
thereafter only so long as its continuance is approved
in the manner required by the Investment Company Act
of 1940, as from time to time amended.
If you are in agreement with the foregoing,
please sign the form of acceptance on the enclosed
counterpart hereof and return the same to us.
Very truly yours,
XXXXXXXXX XXXXXX MANAGEMENT LLC
/s/ Xxxxxx Xxxxx
By: Xxxxxx Xxxxx
Title: President
The foregoing is hereby accepted as
of the date first above written.
XXXXXXXXX XXXXXX FIXED INCOME LLC
/s/ Xxxx Xxxxx
By: Xxxx Xxxxx
Title: Senior Vice President
Copies of Interim Investment Advisory Contracts
MANAGEMENT AGREEMENT
XXXXXXXXX XXXXXX INCOME OPPORTUNITY FUND INC.
This Agreement is made as of May 4, 2009,
between Xxxxxxxxx Xxxxxx Income Opportunity
Fund Inc., a Maryland corporation (Fund), and
Xxxxxxxxx Xxxxxx Management LLC, a Delaware limited
liability company (Manager).
WITNESSETH:
WHEREAS, Fund is registered under the
Investment Company Act of 1940, as amended (1940
Act), as a closedend, nondiversified management
investment company; and
WHEREAS, Fund desires to retain the Manager
as investment adviser to furnish the investment
advisory and portfolio management services described
herein and the Manager is willing to furnish such
services;
NOW, THEREFORE, in consideration of the premises
and mutual covenants herein contained, it
is agreed between the parties hereto as follows:
1. Services of the Manager.
1.1 Investment Management Services. The
Manager shall act as the investment adviser to
the Fund and, as such, shall (i) obtain and evaluate
such information relating to the economy, industries,
businesses, securities markets and securities as it may
deem necessary or useful in discharging its
responsibilities hereunder, (ii) formulate a continuing
program for the investment of the assets of the Fund
in a manner consistent with its investment objectives,
policies and restrictions, and (iii) determine from
time to time securities to be purchased, sold, retained
or lent by the Fund, and implement those decisions,
including the selection of entities with or through
which such purchases, sales or loans are to be effected;
provided, that the Manager will place orders pursuant
to its investment determinations either directly with
the issuer or with a broker or dealer, and if with a
broker or dealer, (a) will attempt to obtain the best net
price and most favorable execution of its orders, and (b)
may nevertheless in its discretion purchase and
sell portfolio securities from and to brokers and dealers
who provide the Manager with research, analysis,
advice and similar services and pay such brokers and
dealers in return a higher commission or spread than
may be charged by other brokers or dealers.
The Fund hereby authorizes any entity or person
associated with the Manager which is a member
of a national securities exchange to effect or execute
any transaction on the exchange for the account of
the Fund which is permitted by Section 11(a) of the
Securities Exchange Act of 1934 and Rule 11a22(T)
thereunder, and the Fund hereby consents to the
retention of compensation for such transactions in
accordance with Rule 11a22(T)(a)(2)(iv).
The Manager shall carry out its duties with
respect to the Funds investments in accordance with
applicable law and the investment objectives, policies
and restrictions of the Fund adopted by the
directors of Fund (Directors), and subject to such
further limitations as the Fund may from time to time
impose by written notice to the Manager.
1.2 The Manager can use any of the officers
and employees of Xxxxxxxxx Xxxxxx LLC to
provide any of the noninvestment advisory services
described herein, and can subcontract to third parties,
provided the Manager remains as fully responsible
to the Fund under this contract as if the Manager had
provided services directly.
2. Expenses of the Fund.
2.1 Expenses to be Paid by the Manager.
The Manager shall pay all salaries, expenses and
fees of the officers, directors and employees of the
Fund who are officers, directors or employees of the
Manager.
In the event that the Manager pays or assumes
any expenses of the Fund not required to be paid
or assumed by the Manager under this Agreement, the Manager
shall not be obligated hereby to pay or
assume the same or any similar expense in the future;
provided, that nothing herein contained shall be
deemed to relieve the Manager of any obligation to
the Fund under any separate agreement or
arrangement between the parties.
2.2 Expenses to be Paid by the Fund. The Fund
shall bear the expenses of its operation,
except those specifically allocated to the Manager
under this Agreement or under any separate agreement
between the Fund and the Manager. Subject to any
separate agreement or arrangement between the Fund
and the Manager, the expenses hereby allocated to
the Fund, and not to the Manager, include, but are not
limited to:
2.2.1 Custody. All charges of depositories,
custodians, and other agents for the transfer,
receipt, safekeeping, and servicing of its cash,
securities, and other property.
2.2.2 Stockholder Servicing. All expenses of
maintaining and servicing Stockholder accounts,
including but not limited to the charges of any
Stockholder servicing agent, dividend disbursing agent or
other agent engaged by the Fund to service Stockholder accounts.
2.2.3 Stockholder Reports. All expenses
of preparing, setting in type, printing and distributing
reports and other communications to Stockholders of the Fund.
2.2.4 Pricing and Portfolio Valuation.
All expenses of computing the Funds net asset value per
share, including any equipment or services obtained
for the purpose of pricing shares or valuing the Funds
investment portfolio.
2.2.5 Communications. All charges for
equipment or services used for communications
between the Manager or the Fund and any custodian,
Stockholder servicing agent, portfolio accounting
services agent, dividend disbursing agent, dividend
reinvestment plan agent or other agent engaged by the
Fund.
2.2.6 Legal and Accounting Fees. All
charges for services and expenses of the Funds legal
counsel and independent auditors.
2.2.7 Directors Fees and Expenses. All
compensation of Directors other than those affiliated
with the Manager, all expenses incurred in connection
with such unaffiliated Directors services as
Directors, and all other expenses of meetings of
the Directors or committees thereof.
2.2.8 Stockholder Meetings. All expenses
incidental to holding meetings of Stockholders,
including the printing of notices and proxy materials,
and proxy solicitation therefor.
2.2.9 Bonding and Insurance. All expenses
of bond, liability, and other insurance coverage
required by law or regulation or deemed advisable
by the Directors, including, without limitation, such
bond, liability and other insurance expense that
may from time to time be allocated to the Fund in a
manner approved by the Directors.
2.2.10 Brokerage Commissions. All brokers
commissions and other charges incident to the
purchase, sale or lending of the Funds portfolio securities.
2.2.11 Taxes. All taxes or governmental
fees payable by or with respect to the Fund to federal,
state or other governmental agencies, domestic or
foreign, including stamp or other transfer taxes.
2.2.12 Trade Association Fees. All fees,
dues and other expenses incurred in connection with
the Funds membership in any trade association or
other investment organization.
2.2.13 Nonrecurring and Extraordinary Expenses.
Such nonrecurring and extraordinary
expenses as may arise, including the costs of actions,
suits, or proceedings to which the Fund is a party
and the expenses the Fund may incur as a result of
its legal obligation to provide indemnification to Funds
officers, Directors and agents.
2.2.14 Organizational Expenses and Offering
Expenses for Common Stock. Any and all
organizational expenses of the Fund and any and all
offering expenses for shares of the Funds common
stock paid by the Manager shall be reimbursed by
the Fund if and at such time or times agreed by the
Fund and the Manager.
2.2.15 Expenses of Listing on a National
Securities Exchange. Any and all expenses of
listing and maintaining the listing of shares of
the Funds common stock on any national
securities exchange.
2.2.16 Offering Expenses for any Preferred
Stock. Any and all offering expenses (including
rating agency fees) for any preferred stock of the
Fund paid by the Manager shall be reimbursed by the
Fund if and at such time or times agreed by the
Fund and the Manager.
2.2.17 Dividend Reinvestment Plan. Any and
all expenses incident to any dividend reinvestment
plan.
2.2.18 Interest. Such interest as may
accrue on borrowings of the Fund.
3. Advisory Fee.
3.1 Fee. As compensation for all services
rendered, facilities provided and expenses paid or
assumed by the Manager under this Agreement, the Fund
shall pay the Manager an annual fee equal to
0.60% of the Funds average daily total assets minus
liabilities other than the aggregate indebtedness
entered into for purposes of leverage (Managed Assets).
3.2 Computation and Payment of Fee. The
advisory fee shall accrue on each calendar day,
and shall be payable monthly on the first business
day of the next succeeding calendar month. The daily
fee accruals shall be computed by multiplying the
fraction of one divided by the number of days in the
calendar year by the annual advisory fee rate, and
multiplying this product by the Managed Assets of the
Fund, determined in the manner established by the
Directors, as of the close of business on the last
preceding business day on which the Funds net asset
value was determined.
3.3 Fee Held in InterestBearing Escrow
Account. Notwithstanding the foregoing, all
compensation earned by the Manager with respect to
the Fund pursuant to this Agreement shall be held in
an interestbearing escrow account with the Funds
custodian or a bank. If a vote of the majority of the
outstanding voting securities of the Fund approves
a new Management Agreement by and between the
Fund and the Manager prior to 150 days from the
date first written above, the amount in the escrow
account (including interest earned) will be paid
to the Manager. If a vote of the majority of the
outstanding voting securities of the Fund does not
approve a new Management Agreement by and
between the Fund, and the Manager, the Manager will
be paid, out of the escrow account, the lesser of (i)
any costs incurred in performing this Agreement (plus
interest earned on that amount while in escrow) or
(ii) the total amount in the escrow account (plus interest earned).
4. Ownership of Records.
All records required to be maintained and preserved
by the Fund pursuant to the provisions or
rules or regulations of the Securities and Exchange
Commission under Section 31 (a) of the 1940 Act and
maintained and preserved by the Manager on behalf of
the Fund are the property of the Fund and shall be
surrendered by the Manager promptly on request by the
Fund; provided, that the Manager may at its own
expense make and retain copies of any such records.
5. Reports to Manager.
The Fund shall furnish or otherwise make available
to the Manager such copies of the Funds
financial statements, proxy statements, reports, and other
information relating to its business and affairs as
the Manager may, at any time or from time to time,
reasonably require in order to discharge its
obligations under this Agreement.
6. Reports to the Fund.
The Manager shall prepare and furnish to the Fund
such reports, statistical data and other
information in such form and at such intervals as the
Fund may reasonably request.
7. Retention of SubAdviser.
Subject to the Fund obtaining the initial and
periodic approvals required under Section 15 of the
1940 Act, the Manager may retain a subadviser, at the
Managers own cost and expense, for the purpose of
making investment recommendations and research
information available to the Manager. Retention of a
subadviser shall in no way reduce the responsibilities
or obligations of the Manager under this Agreement
and the Manager shall be responsible to Fund for all
acts or omissions of the subadviser in connection
with the performance of the Managers duties hereunder.
8. Services to Other Clients.
Nothing herein contained shall limit the freedom
of the Manager or any affiliated person of the
Manager to render investment management and administrative
services to other investment companies, to
act as investment adviser or investment counselor to other
persons, firms or corporations, or to engage in
other business activities.
9. Limitation of Liability of Manager and its Personnel.
9.1 Neither the Manager nor any director,
officer or employee of the Manager performing
services for the Fund at the direction or request of
the Manager in connection with the Managers
discharge of its obligations hereunder shall be liable
for any error of judgment or mistake of law or for
any loss suffered by the Fund in connection with any
matter to which this Agreement relates; provided,
that nothing herein contained shall be construed (i)
to protect the Manager against any liability to the
Fund or its Stockholders to which the Manager would
otherwise be subject by reason of the Managers
willful misfeasance, bad faith, or gross negligence
in the performance of the Managers duties, or by
reason of the Managers reckless disregard of its
obligations and duties under this Agreement (disabling
conduct), or (ii) to protect any director, officer
or employee of the Manager who is or was a Director or
officer of the Fund against any liability to the Fund
or its Stockholders to which such person would
otherwise be subject by reason of willful misfeasance,
bad faith, gross negligence or reckless disregard of
the duties involved in the conduct of such persons office
with the Fund.
9.2 The Fund will indemnify the Manager
against, and hold it harmless from, any and all
expenses (including reasonable counsel fees and expenses)
incurred investigating or defending against
claims for losses or liabilities described in Section
9.1 not resulting from negligence, disregard of its
obligations and duties under this Agreement or disabling
conduct by the Manager. Indemnification shall
be made only following: (i) a final decision on the
merits by a court or other body before whom the
proceeding was brought that the Manager was not
liable by reason of negligence, disregard of its
obligations and duties under this Agreement or disabling
conduct or (ii) in the absence of such a decision,
a reasonable determination, based upon a review of
the facts, that the Manager was not liable by reason of
negligence, disregard of its obligations and duties
under this Agreement or disabling conduct by (a) the
vote of a majority of a quorum of directors of the Fund
who are neither interested persons of the Fund nor
parties to the proceeding (disinterested nonparty
directors) or (b) an independent legal counsel in a written
opinion. The Manager shall be entitled to advances
from the Fund for payment of the reasonable
expenses incurred by it in connection with the matter
as to which it is seeking indemnification hereunder
in the manner and to the fullest extent permissible
under the Maryland General Corporation Law. The
Manager shall provide to the Fund a written affirmation
of its good faith belief that the standard of
conduct necessary for indemnification by the Fund has
been met and a written undertaking to repay any
such advance if it should ultimately be determined
that the standard of conduct has not been met. In
addition, at least one of the following additional
conditions shall be met: (a) the Manager shall provide
security in form and amount acceptable to the Fund
for its undertaking; (b) the Fund is insured against
losses arising by reason of the advance; or (c) a
majority of a quorum of the full Board of Directors of the
Fund, the members of which majority are disinterested
nonparty directors, or independent legal counsel,
in a written opinion, shall have determined, based on
a review of facts readily available to the Fund at the
time the advance is proposed to be made, that there is
reason to believe that the Manager will ultimately
be found to be entitled to indemnification hereunder.
10. Effect of Agreement.
Nothing herein contained shall be deemed to
require the Fund to take any action contrary to the
Articles of Incorporation or ByLaws of the Fund, any
actions of the Directors binding upon the Fund, or
any applicable law, regulation or order to which the
Fund is subject or by which it is bound, or to relieve
or deprive the Directors of their responsibility for
and control of the conduct of the business and affairs of
the Fund.
11. Term of Agreement.
The term of this Agreement shall begin on the
date first above written and, unless sooner
terminated as hereinafter provided, this Agreement
shall remain in effect until the earlier of (i) 150 days
from the date first above written, or (ii) the effective
date of a new Management Agreement by and
between the Fund, and the Manager, that has been
approved by a vote of the majority of the outstanding
voting securities of the Fund; provided, however, that
it shall remain in effect for such longer period as
the Securities and Exchange Commission or its staff
shall permit. The Manager shall furnish to the Fund,
promptly upon its request, such information as may
reasonably be necessary to evaluate the terms of this
Agreement or any extension, renewal or amendment thereof.
12. Amendment or Assignment of Agreement.
Any amendment to this Agreement shall be in
writing signed by the parties hereto; provided, that
no such amendment shall be effective unless authorized
on behalf of the Fund (i) by resolution of the
Directors, including the vote or written consent of
a majority of the Directors who are not parties to this
Agreement or interested persons of either party hereto,
and (ii) by vote of a majority of the outstanding
voting securities of the Fund. This Agreement shall
terminate automatically and immediately in the event
of its assignment.
13. Termination of Agreement.
This Agreement may be terminated (i) at any
time, without payment or penalty, by the Funds
Board of Directors or by vote of a majority of the
outstanding voting securities of the Fund, on ten (10)
days written notice to the Manager, and (ii) by the
Manager on sixty (60) days written notice to the Fund.
14. Name of the Fund.
The Fund hereby agrees that if the Manager shall
at any time for any reason cease to serve as
investment adviser to the Fund, the Fund shall, if and
when requested by the Manager, eliminate from the
Funds name the name Xxxxxxxxx Xxxxxx and thereafter
refrain from using the name Xxxxxxxxx Xxxxxx
or the initials NB in connection with its business or
activities, and the foregoing agreement of the Fund
shall survive any termination of this Agreement and
any extension or renewal thereof.
15. Interpretation and Definition of Terms.
Any question of interpretation of any term or provision
of this Agreement having a counterpart in
or otherwise derived from a term or provision of the 1940
Act shall be resolved by reference to such term
or provision of the 1940 Act and to interpretation thereof,
if any, by the United States courts or, in the
absence of any controlling decision of any such court, by
rules, regulations or orders of the Securities and
Exchange Commission validly issued pursuant to the 1940
Act. Specifically, the terms vote of a majority
of the outstanding voting securities, interested person,
assignment and affiliated person, as used in this
Agreement shall have the meanings assigned to them by Section
2(a) of the 1940 Act. In addition, when
the effect of a requirement of the 1940 Act reflected in
any provision of this Agreement is modified,
interpreted or relaxed by a rule, regulation or order
of the Securities and Exchange Commission, whether
of special or of general application, such provision
shall be deemed to incorporate the effect of such rule,
regulation or order.
16. Choice of Law
This Agreement is made and to be principally
performed in the State of New York and except
insofar as the 1940 Act or other federal laws and
regulations may be controlling, this Agreement shall be
governed by, and construed and enforced in accordance
with, the internal laws of the State of New York.
17. Captions.
The captions in this Agreement are included
for convenience of reference only and in no way
define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
18. Execution in Counterparts.
This Agreement may be executed simultaneously
in counterparts, each of which shall be deemed
an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be signed by their
respective officers thereunto duly authorized and
their respective seals to be hereunto affixed, as of the
day and year first above written.
XXXXXXXXX XXXXXX INCOME OPPORTUNITY FUND
INC.
/s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President and Secretary
XXXXXXXXX XXXXXX MANAGEMENT LLC
/s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: President
Date: May 4, 2009
SUBADVISORY AGREEMENT
XXXXXXXXX XXXXXX INCOME OPPORTUNITY FUND
XXXXXXXXX XXXXXX MANAGEMENT LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 101580006
May 4, 2009
Xxxxxxxxx Xxxxxx LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 101583698
Dear Sirs:
We have entered into a Management
Agreement with Xxxxxxxxx Xxxxxx Income Opportunity
Fund Inc. (Fund) pursuant to which we are to
act as investment adviser to the Fund. We hereby agree
with you as follows:
1. You agree for the duration of this
Agreement to furnish us with such investment
recommendations and research information, of
the same type as that which you from time to
time provide to your employees for use in
managing client accounts, all as we shall
reasonably request. In the absence of willful
misfeasance, bad faith or gross negligence in the
performance of your duties, or of the reckless
disregard of your duties and obligations
hereunder, you shall not be subject to liability
for any act or omission or any loss suffered by
the Fund or its security holders in connection
with the matters to which this Agreement
relates.
2. In consideration of your agreements set
forth in paragraph 1 above, we agree to pay you on
the basis of direct and indirect costs to you of
performing such agreements. Indirect costs
shall be allocated on a basis mutually satisfactory
to you and to us. Notwithstanding the
foregoing, all compensation earned by you with
respect to the Fund pursuant to this
Agreement shall be held in an interestbearing
escrow account with the Funds custodian or a
bank. If a vote of a majority of the outstanding
voting securities of the Fund approves both a
new Management Agreement and SubAdvisory Agreement,
prior to 150 days from the date
first written above, the amount in the escrow
account (including interest earned) will be paid
to you. If a vote of a majority of the outstanding
voting securities of the Fund does not
approve both a new Management Agreement and
SubAdvisory Agreement, you will be paid,
out of the escrow account, the lesser of (i)
any costs incurred in performing this Agreement
(plus interest earned on that amount while in
escrow) or (ii) the total amount in the escrow
account (plus interest earned).
3. As used in this Agreement, the terms
assignment and vote of a majority of the outstanding
voting securities shall have the meanings given
to them by Section 2(a)(4) and 2(a)(42),
respectively, of the Investment Company Act
of 1940, as amended.
This Agreement shall terminate automatically
in the event of its assignment, or upon
termination of the Management Agreement between
the Fund and the undersigned.
This Agreement may be terminated at any time,
without the payment of any penalty, (a) by the
Directors of the Fund or by vote of a majority of
the outstanding voting securities of the Fund or by the
undersigned on not less than ten days written
notice addressed to you at your principal place of business;
and (b) by you, without the payment of any penalty,
on not less than thirty nor more than sixty days
written notice addressed to the Fund and the
undersigned at the Funds principal place of business.
This Agreement shall remain in full force
and effect until the earlier of (i) 150 days from the date
first above written, or (ii) the date on which a
new Management Agreement and SubAdvisory Agreement
is approved; provided, however, that it shall remain
in effect for such longer period as the Securities and
Exchange Commission or its staff shall permit.
If you are in agreement with the foregoing,
please sign the form of acceptance on the enclosed
counterpart hereof and return the same to us.
Very truly yours,
XXXXXXXXX XXXXXX MANAGEMENT LLC
/s/ Xxxxxx Xxxxx
By: Xxxxxx Xxxxx
Title: President
The foregoing is hereby accepted as
of the date first above written.
XXXXXXXXX XXXXXX LLC
/s/ Xxxxxx Xxxxx
By: Xxxxxx Xxxxx
Title: Managing Director
SUBADVISORY AGREEMENT
XXXXXXXXX XXXXXX INCOME OPPORTUNITY FUND
XXXXXXXXX XXXXXX MANAGEMENT LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 101580006
May 4, 2009
Xxxxxxxxx Xxxxxx Fixed Income LLC
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Dear Sirs:
We have entered into a Management Agreement
with Xxxxxxxxx Xxxxxx Income Opportunity
Fund Inc. (Fund) pursuant to which we are to act as
investment adviser to the Fund. We hereby agree
with you as follows:
1. You agree for the duration of this
Agreement to furnish us with such investment
recommendations and research information, of the
same type as that which you from time to
time provide to your employees for use in
managing client accounts, all as we shall
reasonably request. In the absence of willful
misfeasance, bad faith or gross negligence in the
performance of your duties, or of the reckless
disregard of your duties and obligations
hereunder, you shall not be subject to liability
for any act or omission or any loss suffered by
the Fund or its security holders in connection
with the matters to which this Agreement
relates.
2. In consideration of your agreements set
forth in paragraph 1 above, we agree to pay you on
the basis of direct and indirect costs to you of
performing such agreements. Indirect costs
shall be allocated on a basis mutually satisfactory
to you and to us. Notwithstanding the
foregoing, all compensation earned by you with
respect to the Fund pursuant to this
Agreement shall be held in an interestbearing
escrow account with the Funds custodian or a
bank. If a vote of a majority of the outstanding
voting securities of the Fund approves both a
new Management Agreement and SubAdvisory
Agreement, prior to 150 days from the date
first written above, the amount in the escrow
account (including interest earned) will be paid
to you. If a vote of a majority of the
outstanding voting securities of the Fund does not
approve both a new Management Agreement and
SubAdvisory Agreement, you will be paid,
out of the escrow account, the lesser of (i)
any costs incurred in performing this Agreement
(plus interest earned on that amount while in
escrow) or (ii) the total amount in the escrow
account (plus interest earned).
3. As used in this Agreement, the terms
assignment and vote of a majority of the outstanding
voting securities shall have the meanings given
to them by Section 2(a)(4) and 2(a)(42),
respectively, of the Investment Company Act of 1940, as amended.
This Agreement shall terminate automatically
in the event of its assignment, or upon
termination of the Management Agreement between
the Fund and the undersigned.
This Agreement may be terminated at any
time, without the payment of any penalty, (a) by the
Directors of the Fund or by vote of a majority of
the outstanding voting securities of the Fund or by the
undersigned on not less than ten days written notice
addressed to you at your principal place of business;
and (b) by you, without the payment of any penalty,
on not less than thirty nor more than sixty days
written notice addressed to the Fund and the undersigned
at the Funds principal place of business.
This Agreement shall remain in full force and
effect until the earlier of (i) 150 days from the date
first above written, or (ii) the date on which a new
Management Agreement and SubAdvisory Agreement
is approved; provided, however, that it shall remain
in effect for such longer period as the Securities and
Exchange Commission or its staff shall permit.
If you are in agreement with the foregoing,
please sign the form of acceptance on the enclosed
counterpart hereof and return the same to us.
Very truly yours,
XXXXXXXXX XXXXXX MANAGEMENT LLC
/s/ Xxxxxx Xxxxx
By: Xxxxxx Xxxxx
Title: President
The foregoing is hereby accepted as
of the date first above written.
XXXXXXXXX XXXXXX FIXED INCOME LLC
/s/ Xxxx Xxxxx
By: Xxxx Xxxxx
Title: Senior Vice President
